Cecily Zamora
Common law trademark rights are based on the actual use of a trademark in commerce within a particular geographic area. These rights are limited to the geographic area where the mark is used, and they can only be claimed if the mark is in current use. While common law trademark rights can provide some basic local protection for a business, they are not sufficient for long-term protection due to their regional restrictions and lack of enforceability. To truly strengthen common law rights, it is advisable to attain federal registration, which provides broader rights and greater protection. Federal trademarks allow for the use of the ® symbol, provide the right to sue infringers, and can aid in recovering fees in litigation. Additionally, federal registration puts others on notice, potentially preventing conflicts before they occur. However, there are instances where a common law trademark may supersede federal trademark rights, such as when it has an earlier, proven first-use date or when a proper clearance search was not conducted prior to the federal application.
| Characteristics | Values |
|---|---|
| Definition | An enforceable mark created by a business or individual to signify or distinguish a product or service |
| Registration | Not required |
| Rights | Arise from the actual use of the mark; go to the business that uses the trademark first |
| Geographic area | Limited to the area in which the mark is used |
| Enforceability | Can be hard to enforce; may be enforceable in state courts |
| Advantages | Can still sue others for trademark infringement; can oppose a trademark application or cancel a registration less than 5 years old |
| Disadvantages | No public record of the trademark; may be difficult to provide notice of your common law rights to others; may have burdens of proof in showing earlier trademark use and ownership |
| Symbols | Can use the "TM" symbol; cannot use the ® symbol |
| Registration database | Not included in the USPTO database |
| Federal protection | Granted some degree of federal protection under the Lanham Act 43(a) |
| Worldwide trademark registration | Does not exist |
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What You'll Learn
- Common law trademark rights are acquired by using a trademark in commerce
- Rights are limited to the geographic area where the trademark is used
- Common law trademarks are not listed in the USPTO register
- You must 'police' your common law trademark to retain infringement protection
- Common law trademarks can be declared with a superscript TM
Common law trademark rights are acquired by using a trademark in commerce
A common law trademark is a trademark established through use in commerce in a specific geographic area. Rights to a common law trademark are acquired by using the trademark in commerce. This means that if a product is sold under a brand name, common law trademark rights have been created, especially once consumers view the brand name as an indicator of the product's source.
Common law trademark rights are limited to the geographic area in which the mark is used. For example, if a coffee blend is sold under the name "BLASTER" in California only, the trademark rights to that name exist only in California. If another coffee retailer begins to market a different blend in New York under the same name, there would be no trademark infringement. However, if the New York company attempted to sell their coffee blend nationwide, they would find that the California company's common law rights to the mark would prevent them from entering the California market.
Common law trademark rights can be hard to enforce because there is no public record of the trademark or when its use began. Registering a trademark with the USPTO gives you a legal presumption that you have the right to use the trademark nationwide and prevent others from using a similar mark for similar goods or services. It also gives trademark holders the right to file a lawsuit in federal court to enforce their rights.
To declare your ownership of a common law trademark, you should add a superscript "TM" to it. This is a symbol for a trademark that represents goods. The TM symbol indicates that you are claiming rights to the trademark next to it. Once you start looking for the TM, you will probably notice many common law trademark examples with this symbol.
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Rights are limited to the geographic area where the trademark is used
A common law trademark provides protection for a symbol, logo, product name, or other words or marks that identify the source of goods or services before it is registered with the state or federal government. You establish rights in your trademark by using it, but these rights are limited and only apply to the geographic area in which you're providing your goods or services.
The geographic scope of a common law trademark refers to the spatial territory where the mark has established a reputation and customer recognition. This typically confines the areas where the business operates or advertises. The geographic scope is crucial in defining the protection level of common law trademarks. If a trademark is in use only within a particular region, its protection under common law may be limited to that region. Common law rights for trademarks are limited to the geographical areas within the United States where these marks have gained recognition. These rights do not automatically extend to foreign territories.
To extend the geographic scope of a common law trademark, businesses can expand their operations or advertisements into new regions, gaining customer recognition in these areas. In trademark disputes, the geographic area of use plays a significant role. Registering a trademark with the United States Patent and Trademark Office (USPTO) can lead to nationwide protection, which is a significant advantage over common law marks, whose protection is generally limited to the geographic area of use.
In legal contexts, the specificity and timeliness of the evidence are paramount, bolstering the case for the common law trademark's adoption and recognition in the new area. While the process of geographic expansion under common law is not automatic and hinges on establishing a significant market presence, startups should be methodical in their documentation from the outset. This strategic accumulation of evidence underscores the importance of meticulous record-keeping for businesses relying on common law trademarks.
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Common law trademarks are not listed in the USPTO register
Common law trademark rights are automatic protections that arise from using a trademark in commerce. These rights are limited to the geographic area in which the trademark is used. For example, if you sell a product only in southern California, your common law trademark may prevent another business from selling the same type of product under a similar name in Los Angeles. However, you will not be able to prevent a competitor from setting up shop with your name in San Francisco or elsewhere in northern California.
While common law trademarks are not listed in the USPTO register, it is important to conduct a comprehensive trademark search before using a trademark or applying for federal trademark registration. This includes searching the USPTO database to ensure that your mark does not infringe upon any federally registered trademarks. Additionally, a common law trademark search is necessary to identify any businesses with superior common law rights in your locality or out-of-town businesses whose common law trademarks may hinder your expansion or limit your rights if you decide to register your mark with the USPTO.
It is worth noting that common law trademarks can be protected by adding a superscript "TM" to the trademark. This alerts the public to your claim of a "common-law" mark, even though common law does not provide all the rights and benefits of federal registration. Once a trademark is registered with the USPTO, the federal registration symbol "®" can be used to denote a registered trademark.
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You must 'police' your common law trademark to retain infringement protection
A common law trademark is a trademark that is present in the marketplace but not registered in the USPTO database. It gives you the exclusive right to use a name, symbol, logo, or phrase in connection with your products or services without registering it with the United States Patent and Trademark Office (USPTO). This can be especially useful for small businesses that are just starting out, do not have the budget for a USPTO registration, or have a pending registered trademark status.
To declare your ownership of a common law trademark, you should add a superscript "TM" to it. This symbol is placed in the upper right of the trademark, immediately after the name. Once you start looking for the TM, you will probably notice many common law trademark examples with this symbol.
Policing your common law trademark is essential to retaining infringement protection. This entails keeping a close eye on competitors in your local area to ensure that no one is using your mark or a similar version that may confuse consumers. Trademark monitoring services can help you identify instances of infringement, and tools like Google Alerts and Google Ads can notify you of potential infringements. If you come across a potential infringer, you should contact them directly or send a cease-and-desist letter to make them aware of your common law trademark.
Failing to police your common law trademark may result in losing your rights to infringement protection. While you can still sue for infringement without registration, your rights and potential financial recovery are more limited in the case of common law trademarks. With registration, you gain the right to sue for damages, and federal trademark rights span the entire United States, whereas common law trademark rights are restricted to your geographic area. Therefore, it is crucial to actively monitor and protect your common law trademark to maintain effective infringement protection.
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Common law trademarks can be declared with a superscript TM
A common law trademark provides protection for a symbol, logo, product name, or other words or marks that identify the source of goods or services. It is important to note that a common law trademark is unregistered and exists before registration with the state or federal government.
To declare ownership of a common law trademark, you should add a superscript "TM" to it. This symbol is placed in superscript, which means it is smaller and placed slightly above and to the right of the trademark. For example, if "BubbleTea" is a trademarked product name, it would appear as "BubbleTeaTM".
The TM symbol is an indication that you are claiming rights to the trademark. It is a way to inform consumers and competitors that you claim ownership of the designs, words, or marks associated with your goods or services. This symbol is typically used for unregistered trademarks and can be applied to names, words, phrases, logos, or any other marketing characters.
It is important to note that even with a common law trademark, you are responsible for "policing" your trademark. This means actively monitoring whether anyone else is using your trademark and taking appropriate action if violations occur. Failure to do so may result in losing your rights to infringement protection.
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Frequently asked questions
A common law trademark provides protection for a symbol, logo, product name, or other words or marks that identify the source of goods or services before it is registered with the state or federal government.
A common law trademark provides protection only within the geographic area in which the goods or services are provided. A registered trademark, on the other hand, offers nationwide protection. Additionally, a registered trademark grants the right to use the ® symbol, while a common law trademark typically uses the TM symbol in superscript.
To establish a common law trademark, you must choose a unique and creative trademark that can distinguish your goods or services from others. It is essential to conduct a comprehensive trademark search to ensure that a similar mark is not already in use. This search should cover various sources, including the internet, public records, newspapers, and registered trademarks in the USPTO trademark database. Once you have confirmed that your chosen mark is available, you can start using it in commerce to establish your common law trademark rights.
A common law trademark provides legal protection for your brand and helps prevent counterfeiting and fraud. It allows you to claim ownership of your trademark and stop others in your geographic area from using confusingly similar marks. While a common law trademark does not offer the same level of protection as a registered trademark, it can still provide valuable rights and deter potential infringers.
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